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Home My WebLink About08-5342 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA), NA Plaintiff No: a$ -53ya CIVi? (PI h vs. COMPLAINT IN CIVIL ACTION YAJAIRA CRUZ Defendant FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: James C. Warmbrodt,42524 WELTMAN, WEINBERG & REIS CO., L.P.A. 436 Seventh Avenue, Suite 1400 Pittsburgh, PA 15219 (412) 434-7955 FAX: 412-338-7130 06824690 C N Pit KLA 9 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA), N. Plaintiff VS. Civil Action No YAJAIRA CRUZ Defendant COMPLAINT AND NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 COMPLAINT 1. Plaintiff, CAPITAL ONE BANK (USA), N. is a corporation with offices at 15000 CAPITAL ONE DRIVE RICHMOND , VA 23238 . 2. Defendant is adult individual(s) residing at the address listed below: YAJAIRA CRUZ 338 A E NORTH ST CARLISLE, PA 17013 3. Defendant applied for and received a credit card bearing the account number XXXXXXXXXXXXXXXX4741. 4. Defendant made use of said credit card and has a current balance due of $1216.82 , as of July 29, 2008 . 5. Defendant is in default by failing to make monthly payments when due. As such, the entire balance is immediately due and payable to Plaintiff . 6. Plaintiff is entitled to the addition of interest at the rate of 27.400% per annum on the unpaid balance from July 29, 2008 . A copy of Plaintiff's APPLICATION is attached hereto, marked as Exhibit "1" and made a part hereof. 7. Although repeatedly requested to do so by Plaintiff, Defendant has willfully failed and/or refused to pay the balance due to Plaintiff. Wherefore, the Plaintiff prays for judgment in its favor and against Defendant , YAJAIRA CRUZ , INDIVIDUALLY , in the amount of $1216.82 with continuing interest thereon at the rate of 27.400 per annum from July 29, 2008 plus costs. James C. Warmbrodt,42524 WELTMAN EINBERG & REIS CO., L.P.A. 436 Se ent Avenue, Suite 1400 Pitts rgh PA 15219 (412) 434- 955 FAX: 412- 38-7130 068 690 N Pit KLA This law firm is a debt collector atte tipt to collect this debt for our client and any information obtaine wAl be used for that purpose. Choose the card that suits - your style. ? Mom pboe the and dtohm ofyour ptehrw r here ftam the ertabtad deskm Nyou ab not pbceyour ord dame on ft b M you WN mcdve the AWkxen design. 18.0ooe tt sund- Please print clearly in black or blue ink. Social Security Number Date of Birth cw t2o 4757 IaFro ;tota< Household Income nl? Phone q(OO t Alimony, child support or separate maimenana income need not be revealed if you do not choose to have it considered as a basis for repaying this loan. i na.e nad ax a twat?wr wscaosuass snd sera . ana ema uom a KJOSed ndudwg ttri yroMSbn . end w?rMiiaon.dtWi o?Bcr? : b,w v v aYi ?? ?,cnen VISAJ Cap"One} YES! I want this new Platinum card with a 0% introductory APR on purchases! This offer expires: March 6, 2006 IIIIBIIIIIINIIIIIBIBI i Yat*aC x009406009 use see Me Importat Disclosures an Me back 0 do letter for rate, 4277 land other cost information. See reverse for Capital One mailing address. 0009406118580737 019 009 Ya aira Cruz ?f-- -437 A E09k No<k?\Jam. Carlisle, P 17013-19 98.'?$.tap .. .? rlaase ranee name ar address if necessa)L k is yA l T CAPITAL ONE BANK (USA), N.A., Plaintiff, V. YAJAIRA CRUZ Defendant(s). VERIFICATION The undersigned does hereby verify subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities, that he/she is an authorized agent of Capital One Services, Inc., an affiliate of and service provider to CAPITAL ONE BANK (USA), N.A., Plaintiff herein, and that he/she is duly authorized to make this Verification, and that the facts set forth in the foregoing Complaint in Civil Action are true and correct to the best of his/her knowledge, information and belief. Dated: - 6 - Z D U $ Anthony Sti A049 WELTMAN, WEINBERG & REIS CO., L.P.A. .C. r Co ; i m. Ul _ CAPITAL ONE BANK(USA). Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : No. 08 - 5342 - Civil Term V. YAJAIRA CRUZ, Defendant : CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the Defendant, Yajaira Cruz, in the above captioned case. Respectfully submitted, Geoffrey Biringer, Esquire MidPenn Legal Services 401 E. Louther Street Carlisle, PA 17013 (717) 243-9400 Date: /0 R? U CAPITAL ONE BANK(USA). Plaintiff V. YAJAIRA CRUZ, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 08 - 5342 - Civil Term CIVII. ACTION - LAW PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the defendant, Yajaira Cruz, by and through her legal counsel, MidPenn Legal Services, and files these PRELIMINARY OBJECTIONS TO PLAINTIFF'S CIVIL ACTION COMPLAINT, and in support thereof avers the following: 1. Plaintiff is Capital One Bank (USA), 15000 Capital One Drive, Richmond,VA 23238. 2. Defendant is Yajaira Cruz (hereinafter "Defendant"). 3. Plaintiff filed its complaint on September 8, 2008. 4. Plaintiff claims that it is owed a balance on account for $1,216.82 for use of its credit card. PRELIMINARY OBJECTION PURSUANT TO PA. R.C. P. No. 1028(a) (4)) (Demurrer) 5. Paragraphs 1 through 4 of Defendant's Preliminary Objections are hereby incorporated by reference hereto. 6. Plaintiff does not allege that there was any agreement between the Plaintiff and the Defendant, merely an application for a credit card. 7. Absent such an allegation, Plaintiff fails to adequately state a cause of action. WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with prejudice for failure to state a cause a cause of action. PRELIMINARY OBJECTION PURSUANT TO PA. R. C. P. No. 1028(a)(3) (INSUFFICIENT SPECIFICITY IN A PLEADING) FOR FAILURE TO PROPERLY PLEAD ITEMS OR TIME, PLACE AND SPECIAL DAMAGES 8. Paragraphs 1 through 7 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 9. Plaintiff claims that it is owed a balance of an account in the amount of $1,216.82 and attaches as sole support thereof an application for a credit card. 10. This application fails to specify any agreements of the parties, terms and conditions of the agreements, amendments to the agreements, the Defendant's request for products, goods or services or the amount, or time and place of individual credit transactions. 11. Plaintiff fails to sufficiently specify the type and/or amount of the alleged debt owed, including the amounts and dates of the alleged charges, the amounts and dates of any payments made, the amounts and dates of any interest charges, and the amounts and dates of any other charges. 12. Pa. R. C. P. No.1019(f) requires that averments of time, place and special damages shall be specifically stated. 13. Plaintiff's general assertion of damages therefore is in violation of Pa. R. C. P. No.1019(f) and renders Defendant unable to properly defend this action. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice for insufficient specificity in a pleading. PRELIMINARY OBJECTION PURSUANT TO PA. R. C. P.No.1028(a)(2) and No.1019(i)(FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT) FOR FAILURE TO ATTACH A WRITING 14. Paragraphs 1 through 13 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 15. Plaintiff bases its claims against Defendant on an application for a credit card between Defendant and Plaintiff. 16. The application attached to Plaintiff's complaint purports to represent Defendant's account, but is of unknown origin and authenticity, and is not a credit agreement. 17. Plaintiff has failed to attach any credit agreements made or signed by Defendant. 18. Pursuant to Pa.R.C. P.No. 1019(1), when a claim is based upon a writing, the pleader must attach a copy of that writing or provide explanation for its absence. 19. To the extent that any credit agreements between Defendant and Plaintiff are written, Plaintiff's Complaint fails to comply with Pa. R. C. P. No. 1019(i) in that Plaintiff has failed to attach to its Complaint a copy of any such written agreements or any explanation for the absence thereof. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice for failure to conform to a law or rule of court. Respectfully submitted, MidPenn Legal Services 91 Date B A .l? . Ge offrey Biringer 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing Preliminary Objections to Plaintiff's Complaint on this 26th day of September, 2008, by placing same in the United States mail, first class, postage prepaid, addressed as follows: James C. Warmbrodt, Esquire 436 Seventh Avenue, Suite 1400 Pittsburgh,PA 15219 MIDPENN LEGAL SERVICES By: ? -61e.614-0 t -"A Z eoffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 C7 ? ?: ev ? ?n , ?- ?` ? -? ? ' ? ? ? ? ?. ? , ? ;? ? SHERIFF'S RETURN - REGULAR CASE NO: 2008-05342 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAPITAL ONE BANK USA N A VS CRUZ YAJAIRA NOAH CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CRUZ YAJAIRA the DEFENDANT , at 1600:00 HOURS, on the 12th day of September, 2008 at 338 E NORTH ST CARLISLE, PA 17013 YAJAIRA CRUZ by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.00 Affidavit .00 Surcharge 10.00 00 JuJ?1'n Y 3 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 09/15/2008 WELTMAN WEINBERG REIS By: Deputy Sheriff of , A. D. c7 OCT Z 8 Z008? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA) N.A., Plaintiff, Case No.: 08-5342 CIVIL TERM vs. YAJAIRA CRUZ, Defendant. ORDER OF COURT AND NOW, this day of QC ,kb f , 200 8 , it is hereby ORDERED, ADJUDGED and DECREED, that upon Stipulation of Plaintiff Capital One Bank (USA) N.A. and Defendant Yajaira Cruz, Plaintiff's Complaint filed at the within case and number is hereby stricken and Plaintiff shall have ninety (90) days from the date of this Order to file an Amended Complaint. Defendant shall be permitted full effect of the Pennsylvania Rules of Civil Procedure in filing Preliminary Objections to any Amended Complaint filed by Plaintiff. BY THE COURT: J. Consented to: Counsel for Plaintiff Counsel or D en ant . co if i-IS.=! vh .aLJf:r CAPITAL ONE BANK(USA). Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : No. 08 - 5342 - Civil Term V. YAJAIRA CRUZ, Defendant : CIVIL ACTION - LAW PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, comes the defendant, Yajaira Cruz, by and through her legal counsel, MidPenn Legal Services, and files these PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT, and in support thereof avers the following: 1. Plaintiff is Capital One Bank (USA), 15000 Capital One Drive, Richmond,VA 23238. 2. Defendant is Yajaira Cruz (hereinafter "Defendant"). 3. Plaintiff filed its complaint on September 8, 2008 and an amended complaint on or about February 10, 2009 4. Plaintiff claims that it is owed a balance on account for $1,216.82 for use of its credit card. PRELIMINARY OBJECTION PURSUANT TO PA. R.C. P. No. 1028(a) (4)) (Demurrer) 5. Paragraphs 1 through 4 of Defendant's Preliminary Objections are hereby incorporated by reference hereto. 6. Plaintiff does not allege that there was any agreement between the Plaintiff and the Defendant, merely an application for a credit card. 7. Plaintiff attaches boilerplate agreements and monthly billing statements, yet said agreements are not personal to the Defendant and the monthly billing statements due not indicate, in any way, that Defendant agreed to the terms relating to balance interest rates, or method of calculating the balance due. 8. Absent such allegations, Plaintiff fails to adequately state a cause of action. 9. Plaintiff's claim of "unjust enrichment" fails to describe how Defendant was unjustly enriched and does not include an itemization of the goods purchased, information that goes to the very core of Plaintiff's claim. WHEREFORE, Defendant prays that Plaintiff's Complaint be dismissed with prejudice for failure to state a cause a cause of action. PRELIMINARY OBJECTION PURSUANT TO PA. R. C. P. No. 1028(a)(3) (INSUFFICIENT SPECIFICITY IN A PLEADING) FOR FAILURE TO PROPERLY PLEAD ITEMS OR TIME, PLACE AND SPECIAL DAMAGES 10. Paragraphs 1 through 9 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 11. Plaintiff claims that it is owed a balance of an account in the amount of $1,216.82 and attaches as support thereof an application for a credit card and monthly billing statements. 12. This application and billing statements fail to specify any agreements of the parties, terms and conditions of the agreements, amendments to the agreements, or the Defendant's request for products, goods or services. 13. Pa. R. C. P. No. 1019(f) requires that averments of time, place and special damages shall be specifically stated. 14. Plaintiff's general assertion of damages therefore is in violation of Pa. R. C. P. No.1019(f) and renders Defendant unable to properly defend this action. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice for insufficient specificity in a pleading. PRELIMINARY OBJECTION PURSUANT TO PA. R. C. P.No.1028(a)(2) and No.1019(i)(FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT) FOR FAILURE TO ATTACH A WRITING 15. Paragraphs 1 through 14 of Defendant's Preliminary Objections are hereby incorporated as if fully set forth herein. 16. Plaintiff bases its claims against Defendant on an application for a credit card and billing statements purportedly to the Defendant. 17. The application attached to Plaintiff's complaint claims to represent Defendant's account, but is of unknown origin and authenticity, and is not a credit agreement. 18. Plaintiff has failed to attach any credit agreements made or signed by Defendant. 19. Pursuant to Pa.R.C. P.No. 1019(i), when a claim is based upon a writing, the pleader must attach a copy of that writing or provide explanation for its absence. 20. To the extent that any credit agreements between Defendant and Plaintiff are written, Plaintiff's Complaint fails to comply with Pa. R. C. P. No. 1019(i) in that Plaintiff has failed to attach to its Complaint a copy of any such written agreements or any explanation for the absence thereof. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice for failure to conform to a law or rule of court. Respectfully submitted, MidPenn Legal Services Date Z By. Geo frey Biringer 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing Defendant's Preliminary Objections to Plaintiff's Amended Complaint on this 27th day of February, 2009, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Patrick Thomas Woodman, Esquire Weltman, Weinberg & Reis Co., L.P.A. 436 Seventh Avenue Pittsburgh,PA 15219 MIDPENN LEGAL SERVICES Geoffrey M. Biringer Attorney for the Defendant 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 t C 1 CAPITAL ONE BANK(USA). Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : No. 08 - 5342 - Civil Term V. YAJAIRA CRUZ, Defendant : CIVIL ACTION - LAW PRAECIPE TO SETTLE AND DISCONTINUE l Please mark the above-captioned case "settled and discontinued." Date: V12-7` ,420G,f Matthew D. Urban, Esquire Attorney for the Plaintiff F l? i,.r :ter OF THE PR TLI; , ' ! iAPY 2009 APR 27 PH 2: 4 J w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA),NA Plaintiff vs. No. 08-5342 CIVIL TERM PRAECIPE TO SETTLE, DISCONTINUE AND END WITH PREJUDICE TO REFILE YAJAIRA CRUZ Defendant(s) FILED ON BEHALF OF Plaintiff COUNSEL OF RECORD OF THIS PARTY: James C. Warmbrodt, Esquire PA I.D. 442524 WELTMAN, WEINBERG & REIS CO., L.P.A 1400 Koppers Building 436 Seventh Avenue Pittsburgh, PA 15219 (412) 434-7955 WWR#6824690 8 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION CAPITAL ONE BANK (USA),NA Plaintiff vs. Civil Action No. 08-5342 CIVIL TERM YAJAIRA CRUZ Defendant(s) PRAECIl'E TO SETTLE DISCONTINUE AND END WITH PREJUDICE TO REFILE TO THE PROTHONOTARY OF COUNTY: Settle, Discontinue and End With Prejudice to Refile the above-captioned matter upon the records of the Court and mark the costs paid. WELTMAN, WEINBERG & REIS CO., L.P.A. By. ?- James C. mbrodt, Esquire PA I.D. # 2 4 WELT AN WEINBERG & REIS CO., L.P.A 1400 pp s Building 436S e h Avenue Pittsb r , PA I5219 (412) 34-7955 WWR#6824690 Sworn to and sub ed Before me the Day of COMMONWEALTH OF PENNSYLVANIA R BLIC Notarial Seal Wendy L. Gault, Notary Public City OF Pittsburgh, Allegheny County My Commission Expires July 15, 2010 Member, Penn,ylvania A?of Notarise /=i led ofd et a? proftia nb lu r? (?.U?r/bCrl?-ne( (??urt? P.?hns?/?anj w